Migration-Related Detention and International Law

Introduction

A number of international instruments—including treaties and protocols, as well as declarations, principles, and guidelines—contain provisions related to the rights of detainees that are particularly relevant to the detention of non-citizens. Migrants, both regular and irregular, also are protected by these provisions. Provisions contained in treaties are binding on states parties. Customary law, which generally reflects the practice and views of states in the international system regarding their international obligations, is also binding on states under international law. Additionally, a number of instruments that are not formally binding in the same manner as treaties—such as UN declarations and guidelines—contain authoritative interpretations of states’ obligations under international law. These can be particularly important in the context of countries that have failed to ratify the main human rights treaties because these instruments sometimes reflect customary law and are often evidence of a broad consensus in the international community, in particular when they are negotiated by UN member states and adopted by the UN General Assembly.

Treaties with universal vocation—i.e. those that can be ratified by all states—that can be relevant to migration-related detention include: the Convention relating to the Status of Refugees and its 1967 Protocol; the Vienna Convention on Consular Relations; the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and its Optional Protocol; the Convention on the Rights of the Child and its Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; and the two supplementary protocols to the UN Convention against Transnational Organised Crime—the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children; and the Protocol against the Smuggling of Migrants by Land, Sea, and Air.

Some treaties have bodies or organs that are charged with monitoring their implementation, including UN committees and regional courts. These organs can clarify the content of international obligations, which are often formulated in a general manner, by expressing concern and making recommendations to governments or, as is in the case of regional courts, by adopting binding decisions. Within the United Nations, among the treaty bodies relevant to migration-related detention are the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights; and the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, which was created by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Also, several general standard-setting instruments relevant to the practice of migration-related detention have been adopted within the UN system, the most widely recognized of which is the “Universal Declaration of Human Rights (1948)”. Article 3 of the declaration affirms that “everyone has the right to life, liberty, and security of person.” Other international documents contain detailed provisions and standards on persons deprived of their liberty, providing guidance to governments on how to comply with their international legal obligations. These include binding treaty standards, which tend to be formulated in a general manner. At the UN level and in the context of the administrative detention of non-citizens, instruments with particular relevance include: the Body of Principles for the Protection of All Person under Any Form of Detention or Imprisonment; and the Declaration on the Human Rights of Individuals Who Are not Nationals of the Country in which They Live.

Further, the UN Human Rights Council, which replaced the Commission on Human Rights in 2006, has created a number of independent enquiry mechanisms (known as “Special Procedures”) that can generally receive complaints, carry out visits to countries, and undertake general studies on themes relevant to their mandates. These mandates address all countries in the world, applying relevant international norms and standards. When addressing specific countries these mandates take into account treaties ratified by the states. Two mandates that have particular relevance to the detention of non-nationals are the Special Rapporteur on the Human Rights of Migrants and the Working Group on Arbitrary Detention.

Lastly, countries can also be bound to treaties, decisions, or norms adopted by regional bodies or organs. Regional organizations—most notably the Council of Europe, the Organization of American States (OAS), and the African Union (AU) (successor to the Organization of African Unity)—have developed human rights norms and mechanisms that, generally, can be applicable to member states of these organizations. Regional-level implementing bodies include the European Court of Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights.

Actions taken in the context of regional entities that are not directly aimed at human rights protection can also have an impact on the situation of non-citizens in detention. The clearest example is that of the European Union (EU), which has adopted or proposed directives with the objective of establishing common rules for all EU states, including standards for the reception of asylum seekers and a directive on returning “illegally-staying third-country nationals.”